Daily Comment on News and Issues of Interest to Michigan Lawyers

06/14/2013

When Your "Shadow Client" Insists On A Crazy Legal Defense

John Steele has a characteristically thoughtful Legal Ethics Forum post about the dilemma faced by a criminal defense lawyer who is assigned as "shadow counsel" to a pro se defendant -- in this case Maj. NIdal Malik Hasan, charged with 13 counts of premeditated murder and 32 counts of attempted murder in the 2009 mass killings at Fort Hood -- when the "shadow client" plans to use a legally suspect defense. Hasan apparently is planning to use an "defense of another" defense, the "other" being the Taliban. The appointed counsel are said to believe the defense crosses an ethical line. Steele believes the shadow counsel should set aside their
own views and support Hasan "even if the defense is unpalatable and likely
to fail":

The defense theory Hasan likes is, apparently, that the shootings at the
military base in Texas were done in defense of the Taliban. It's a
"defense of third party" theory. Presumably it would be an "imperfect
necessity" argument: that the acts were done in the actual but
unreasonable belief that they were necessary. That is neither
justification nor excuse. At best, it's mitigation. But it does give the
accused the chance to speak honestly and openly about why he did what
he did. That is a close analog of the defense that the Unabomber wanted
to raise but was prevented from raising because the federal public
defenders deceived him and then put on another defense. (William
Finnegan's classic article about that case, Defending the Unabomber,
is under a paywall, unfortunately.) It's a reasonably close analogy of
the defense that John Brown wanted to raise. In both the Unabomber and
the John Brown cases, the defense preferred to raise mental health
defenses.

Comments

When Your "Shadow Client" Insists On A Crazy Legal Defense

John Steele has a characteristically thoughtful Legal Ethics Forum post about the dilemma faced by a criminal defense lawyer who is assigned as "shadow counsel" to a pro se defendant -- in this case Maj. NIdal Malik Hasan, charged with 13 counts of premeditated murder and 32 counts of attempted murder in the 2009 mass killings at Fort Hood -- when the "shadow client" plans to use a legally suspect defense. Hasan apparently is planning to use an "defense of another" defense, the "other" being the Taliban. The appointed counsel are said to believe the defense crosses an ethical line. Steele believes the shadow counsel should set aside their
own views and support Hasan "even if the defense is unpalatable and likely
to fail":

The defense theory Hasan likes is, apparently, that the shootings at the
military base in Texas were done in defense of the Taliban. It's a
"defense of third party" theory. Presumably it would be an "imperfect
necessity" argument: that the acts were done in the actual but
unreasonable belief that they were necessary. That is neither
justification nor excuse. At best, it's mitigation. But it does give the
accused the chance to speak honestly and openly about why he did what
he did. That is a close analog of the defense that the Unabomber wanted
to raise but was prevented from raising because the federal public
defenders deceived him and then put on another defense. (William
Finnegan's classic article about that case, Defending the Unabomber,
is under a paywall, unfortunately.) It's a reasonably close analogy of
the defense that John Brown wanted to raise. In both the Unabomber and
the John Brown cases, the defense preferred to raise mental health
defenses.